Dáil debates

Tuesday, 7 March 2006

Whistleblowers Protection Bill 1999: Motion.


7:00 pm

Photo of Pat RabbittePat Rabbitte (Dublin South West, Labour)
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I move:

That Dáil Éireann,

—recalling calls made by the Irish Nurses Organisation, the Irish Bank Officials Association and the Irish Airline Pilots Association, among others, for comprehensive statutory protection for employees and others who blow the whistle on significant illegal and unacceptable practices that can otherwise become established and remain unidentified over long periods, even by those charged with conducting inspections;

—bearing in mind the recommendation of the Standards in Public Office Commission that a whistleblowers' charter be introduced for local government employees; and

—having regard to the findings and recommendations of the Lourdes Hospital inquiry;

noting that:

—the Whistleblowers Protection Bill 1999 was introduced on 24 March 1999, had its Second Stage on 15 and 16 June of that year and was referred to the Select Committee on Enterprise and Small Business;

—on 30 March 2000, the then Minister for Finance told the Dáil, in a statement on the CPA Report on the DIRT inquiry, that: "The sub-committee further recommended that a scheme and procedure for bank officials to report suspected wrongdoing be introduced. I understand that the Tánaiste and Minister for Enterprise, Trade and Employment will be bringing forward proposals in this area in the near future. These are expected to take the form of amendments to the Whistleblowers Protection Bill 1999 which was initiated in the Dáil last year as a Private Member's Bill";

—on 8 November 2000, the then Minister of State at the Department of Enterprise, Trade and Employment with special responsibility for labour, trade and consumer affairs, confirmed that the Bill was one of a number of upcoming pieces of legislation currently being developed within his area of responsibility;

—on 4 December 2000, the Taoiseach wrote, in an article in The Irish Times setting out his Government's proposals for a package of measures to combat corruption, that "I am announcing a set of proposals which meet the need for modernisation and transparency, while at the same time allowing for the continuing development of a fully inclusive and dynamic body politic. These proposals include the introduction of legislation to protect whistleblowers";

—the annual report of the Department of Enterprise, Trade and Employment for 2001 stated that: "The Whistleblowers (Protection) Bill 1999, which protects employees from civil liability or penalisation by their employers for disclosing to other persons information relating to serious wrongdoing, was extensively amended. In 2001 extensive amendments were prepared based on consultations with all Government Departments and have now been forwarded to the Office of the Parliamentary Counsel for drafting";

—although the Bill lapsed on the dissolution of the 28th Dáil on 24 April 2002, it was by order of 18 June 2002, restored to the Order Paper, on the motion of the Government Whip;

—the Bill also featured in a report to the Government of the high level group on regulation, published in November 2002, under the heading "Phase 2 Reforms", being those reforms recommended by the OECD the implementation of which was envisaged for the medium term; and

—the Oireachtas Joint Committee on Finance and the Public Service, in its report of June 2005 on commercial bank charges and interest rates, stated that whistleblowing should receive statutory protection and recommended unanimously that the Whistleblowers Protection Bill 1999 should be progressed;

conscious of the subsequent inexcusable delay in the consideration of this Bill, resolves that, notwithstanding anything in Standing Orders:

—the Order of the Dáil of 18 June 2002, to the extent that it orders that the Whistleblowers Protection Bill 1999 be considered in committee of the whole Dáil, be discharged and the Bill be referred to the Select Committee on Enterprise and Small Business pursuant to Standing Order 112 and paragraph (1)(a)(i) of that committee's Orders of Reference,

—that it be an instruction to the select committee that proceedings on the Bill be commenced as the next immediate item of business of the committee and be progressed with all due expedition and that, immediately after the conclusion of those proceedings, the committee shall, in accordance with Standing Order 85, send a message to the Dáil regarding the completion of its consideration of the Bill. Provided that, if those proceedings are not earlier concluded, the select committee shall report back to the Dáil its progress on those proceedings on 1 June 2006.

I wish to share time with Deputies Hogan and McManus.

In debating this motion in the wake of the Neary affair, the Dáil again returns to the need for openness, transparency and accountability in public life. The evidence of its years in office has persuaded me that the Government fears those concepts almost as much as it despises them. It knows that it must pay lip service but its impulse is to renege, to side-step, to prevaricate and to dissemble.

Developments may take place in other countries and reforms may sweep through the most hidebound and bloated of international institutions but the Progressive Democrats and Fianna Fáil see no need to change the way we do our business here. Almost 16 years ago, the House of Commons commission on citizenship, in its final report published in 1990, concluded that:

The challenge to our society in the late 20th century is to create conditions where all who wish can become actively involved, can understand and participate, can influence, campaign and whistleblow, and in the making of decisions can work together for the mutual good.

As long ago as September 2000, the OECD was able to point out, in a policy brief on building public trust, entitled Ethics Measures in OECD Countries, that:

Reporting misconduct by public servants is either required by law and/or facilitated by organisational rules in two thirds of OECD countries. A growing need to provide protection for whistleblowers in the public service is also visible across OECD countries. Almost half of these countries offer general protection mainly in their public service framework, where the most commonly provided safeguards are legal protection and anonymity.

In its guidelines for multinational enterprises, written by the member states, the OECD stated that:

Safeguards to protect bona fide whistleblowing activities are also recommended, including protection of employees who, in the absence of timely remedial action or in the face of reasonable risk of negative employment action, report practices that contravene the law to the competent public authorities.

In Washington DC last month, the Vaughn report, commissioned by the World Bank as a blueprint to modernise its inadequate whistleblower protection policies, was released. The report was drawn up by Robert Vaughn of the American University Law School and it incorporates best practices that have already been adopted by the United Nations — approved by the Organisation of American States to implement its inter-American convention against corruption — and that were enacted last autumn as US policy to strengthen anti-corruption efforts at all multilateral development banks. The United Nations spent last year involving its staff, with advice from external NGOs, in an extensive rewriting of its whistleblower policies. The UN's new policies took effect on 1 January.

The Vaughn report outlines 22 major recommendations for the World Bank, including that whistleblower protection should extend to all staff, including former and temporary employees, consultants and contractors. Employees must have the ability to report directly to multiple authorities, including at board level. Criteria for protected disclosures and prohibited retaliation, based on existing and tested international norms, must be standardised. Due process rights must be accessible and enforceable and, in the absence of a credible and binding internal adjudicatory alternative, access to an external adjudicative body is necessary.

Meanwhile back in Ireland, the Government has been doing that at which it is best — absolutely nothing. There was some genuine reason for hope when the Government gave its official reaction to my Bill on 15 June 1999. The Minister of State at the Department of Enterprise, Trade and Employment, Deputy Kitt, said, "I fully support any meaningful measures to increase the protection of workers and, therefore, I will not oppose the reference of this Bill to a committee". He commented that, in an ideal world, where information and consultation is the norm and the working environment is open and transparent, this legislation would not be necessary. He continued:

However, human nature being what it is, measures such as those envisaged in the Bill may be necessary as a last resort to ensure that a small minority of employers must answer for certain dubious practices in the conduct of their business affairs. Good employers, however, who respect the practice of information and consultation with their workers, need have no fear from the implementation of the measures envisaged in the Bill.

He concluded by saying:

I have, however, no problem in accepting the spirit in which the Bill is put forward and the principle of protecting employees' rights. I fully support the objective of improving the rights of such employees. As regards future actions, it would be useful if I and my officials could maintain regular contact with Deputy Rabbitte with a view to co-operating to ensure that the resultant Bill contains the best legislative proposals that can be put in place to protect persons from retaliation by their employers for reporting dubious practices to the appropriate authorities.

I can inform the House that neither the then Minister of State, Deputy Kitt, his senior Minister, their successors nor any of their officials have had or maintained any sort of contact with me on this Bill, regular or irregular, from that day. The Minister may well yawn.

In welcoming the Bill, Deputy Conor Lenihan said:

We live in a global economy with large corporate players who can quite easily transgress the rights, not just of their employees but also of thousands of customers and other ordinary people. We have seen that happen in environmental disasters like the one at Bhopal in India. In Nigeria and other areas we have seen companies that have nakedly transgressed the rights of ordinary individuals. It is important, therefore, to introduce this type of legislation domestically.

The then Minister of State, Deputy Cullen, concluded the debate by saying, "The Government is committed to the maximum co-operation on this Bill to ensure we have the best possible legislation on this important issue". That, of course, was before the general election.

Perhaps ominously, the then Minister of State, Deputy Cullen, compared the Bill in importance to the Freedom of Information Act, which he described as "the most far-reaching legislation as regards dealing with the public sector", which "marked an important first step towards a new era of openness in Government and in public affairs". He described my Bill as contributing further to the culture of openness and transparency. We know what the Government did to freedom of information once it became tired of its temporary little commitment to openness, transparency and accountability.

On 16 June 1999, the Bill was sent to the Select Committee on Enterprise and Small Business but the proceedings were delayed to give the Tánaiste and then Minister for Enterprise, Trade and Employment, time to consider the Bill in detail and to propose any necessary amendments. This was understandable and we waited in patience for the results of her deliberations. In the interim, as the motion recites, the Irish Nurses Organisation, the Irish Bank Officials Association and the Irish Airline Pilots Association, among others, called for comprehensive statutory protection for employees and others who blow the whistle on significant illegal and unacceptable practices that can otherwise become established and remain unidentified for long periods, even by those charged with conducting inspections. The Standards in Public Office Commission has recommended that a whistleblowers' charter be introduced for local government employees.

Government Ministers and the Taoiseach continued to give the impression that work was ongoing to strengthen and improve the Bill. On 30 March 2000, the Minister for Finance told the Dáil, in a statement on the Committee of Public Accounts report on the DIRT inquiry, that a scheme and procedure for bank officials to report suspected wrongdoing would be introduced by way of amendments to the Whistleblowers Protection Bill. On 4 December 2000, the Taoiseach wrote, in an article in The Irish Times setting out his Government's proposals for a package of measures to combat corruption:

I am announcing a set of proposals which meet the need for modernisation and transparency, while at the same time allowing for the continuing development of a fully inclusive and dynamic body politic. These proposals include the introduction of legislation to protect whistleblowers.

The annual report of the Department of Enterprise, Trade and Employment for 2001, referring to the Whistleblowers Protection Bill, stated:

Extensive amendments were prepared based on consultations with all Government Departments and have now been forwarded to the Office of the Parliamentary Counsel for drafting.

While the Bill lapsed on the dissolution of the 28th Dáil on 24 April 2002, it was restored to the Order Paper on the motion of the Government Whip after the general election. The Bill also had its supporters in the high level group on regulation, which reported to the Government in November 2002 on the timetable for implementation of regulatory reforms that were recommended to this country by the OECD and had been accepted by the Government.

Last June, Deputy Seán Fleming produced a report from the Joint Committee on Finance and the Public Service on commercial bank charges and interest rates, stating whistleblowing should receive statutory protection and recommending unanimously that the Whistleblowers Protection Bill 1999 as tabled by the Labour Party should be progressed. What has happened? The truth is that the Taoiseach and the Tánaiste systematically misled the Dáil on the reasons the Government has blocked further progress on this Bill. I have continually questioned the Taoiseach, the Tánaiste and the Minister for Finance on the Order of Business and was told by each that significant legal and constitutional issues had arisen and the legal advice was that the Government should not proceed with the Labour Party's Bill.

Under pressure from me on 15 June last year, the sixth anniversary of the Bill passing Second Stage, the Tánaiste told me she would ask the line Minister to give me the legal advice. When I still had not received the promised legal advice, I again raised the matter with the Tánaiste on 30 June and she was forced to admit that there was, in fact, no legal advice. She stated: "It was not actually the Attorney General's advice but official advice on the difficulties that would arise if the whistleblowing legislation applied to companies outside Ireland with a subsidiary in Ireland".

We now know the Dáil has been systematically misled by the most senior members of the Government and that the real reason the Government reversed engines and decided not to proceed with important legislation it had supported on Second Stage is that it was afraid the legislation might offend some multinationals. The multinational companies have had extensive practical experience of dealing with whistleblower legislation in many other countries in the west and have learned to live quite comfortably with it. However, if they can persuade this Government to impose much poorer standards of corporate governance than they are used to elsewhere, they would be foolish not to throw their weight around.

Our motion requires action. It requires that the Bill be referred to the Select Committee on Enterprise and Small Business, that proceedings on the Bill be commenced as the next immediate item of business of the committee, be progressed with all due expedition and that the select committee report back to the Dáil its progress on those proceedings by 1 June 2006.

As to the merits of the Bill itself, I make no apology for repeating some of what has been said and agreed by the House. The purpose of the Bill is to challenge and help transform the traditional culture of secrecy that surrounds the conduct of business and public affairs in this country. From the Irish Blood Transfusion Service to the beef industry, whether it's Army deafness, Dublin planning or, more recently and most devastatingly, Our Lady of Lourdes Hospital's maternity wing, the questions are the same — did nobody know or suspect, is it credible that nobody in the system ever stumbled across wrongdoing and why was nothing reported earlier? Regarding illegality and malpractice in our financial institutions, did nobody in these institutions know what was going on? In answer to all of these questions, most right-thinking people will believe that people did know or had suspicions. However, the consequences for whistleblowers in terms of careers and livelihoods are such that it is often easier to turn a blind eye.

We do not have a developed sense of corporate morality or personal responsibility in the public sphere. It is always someone else's job to shout "Stop". We do not like cynical troublemakers and naysayers and we also have contempt for busybodies, squealers and tattletales. However, few would disagree that we all have a duty of loyalty to the public trust, the law and our communities. That is the heart of our duty as good patriotic citizens. Therefore, the Labour Party Bill proposes a set of new statutory rights for employees, whether in the public or the private sector, to report and transmit information they receive of illegality or malpractice they have discovered in the course of their employment. This is an essential step to restoring confidence in our major institutions, whether industrial, financial or governmental.

Under the provisions of the Bill, any employee who blows the whistle on fraud or malpractice will be entitled to protection against dismissal or any other sanction that his or her employer attempts to impose. These rights are essential if we are serious about ending the nod and wink culture that permeates certain sectors of Irish business and public life. The Bill would radically challenge the culture of secrecy that surrounds Irish business and public life. It would provide legal protection to employees who have good reason to report dubious practices to regulatory authorities such as the Garda, the Central Bank or the Revenue Commissioners. Employees who make such disclosures in good faith will be protected by the law from civil liability and discrimination in their employment up to and including dismissal.

Events of recent years have demonstrated that the current legal position actively discourages individuals from reporting what they believe to be serious offences or major failings on the part of their employers, many of which have public interest implications. The Whistleblowers Protection Bill 1999 is designed to give legal protection against persecution and discrimination to workers who find themselves in such situations. Many abuses occur in Irish life due to the fact that no one shouted "Stop". This is just as true in the business world as has been proven — more radically and tragically — to be true in the area of institutional care. This Bill will challenge this culture.

Primarily, the Bill supports individuals who make disclosures to relevant authorities that have a regulatory, supervisory or investigative role. It is not designed to encourage anyone as a first resort to run straight to the media with information received in confidence in the doing of their jobs. However, recent revelations regarding abuses in the banking sector, for example, point to the fact that our regulatory authorities must have access to information to investigate serious issues of public concern. There is an obligation on the State to ensure individuals who provide such information are not victimised or discriminated against in the wake of their disclosures. This is an employment protection and public interest Bill, designed to secure rights for any worker, whether on a FÁS course, working in a hospital, a blood bank, a shopping store, a beef factory, a financial institution or a Department, to refuse to be complicit with improper decisions taken by his or her management superiors.

I share the genuine public concern at the failure of our regulatory institutions, such as the Revenue Commissioners and the Central Bank, to crack down on glaring abuses of the system. The Labour Party is determined that the safeguards of the State put in place to ensure that decent standards prevail in public and commercial life, must work and be seen to work. The Bill will greatly assist in this process. It supports the individual against the might of major companies and institutions, both public and private. It upholds the rights of individuals to draw attention to abuses that affect us all. It is a Bill worthy of the support of all Members of the Oireachtas, which I had believed it received on the last occasion.

I again acknowledge the ground-breaking work done by my former colleague, Deputy and Minister of State, Ms Eithne Fitzgerald, on the issues of freedom of information, ethics legislation, the Electoral Acts and so on. As I pointed out, we are not the first Legislature to address this issue. It is noteworthy that in the United Kingdom, a country with a Government and establishment almost as notoriously secretive as our own, the Public Interest Disclosure Act 1998 — ironically introduced as a Private Member's Bill — was adopted by the Government and enacted last year. Its passage was supported by the Institute of Directors and the Confederation of British Industry. Why can the Department of Enterprise, Trade and Employment not move on?

I emphasise that this Bill borrows from the British legislation in one important respect. Its purpose is to provide protection from civil liability to employees who make disclosures in categories listed in the Bill as long as those disclosures are made reasonably and in good faith. I stress the words "reasonably" and "in good faith" because it is important to reiterate that I am not advocating a free-for-all for rogues or malcontents in our business and commercial world, still less in the public services. Many Members of the House will agree that there is a wide difference between what is interesting to the public and what is in the public interest to be made known. The Bill will also prohibit the penalisation of employees by their employers where disclosures are made. It lists the persons to whom disclosures should be made and it specifies the categories of matters where disclosure is permissible.

It seems clear that accepting the Bill on Second Stage was preferable to the embarrassment of voting it down but there was never any intention of actually implementing it. The Government thought it better to put on an outward show of agreement, then send the issue into a departmental committee, where it would die of old age.

Although this 1999 Bill probably holds some form of parliamentary record as the longest standing Bill on the Dáil's Order Paper, it will take a change of Government to see it passed into law. If that is what it takes, that will happen.

Photo of Phil HoganPhil Hogan (Carlow-Kilkenny, Fine Gael)
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I thank the Labour Party for its exemplary whistleblowers Bill, which the Fine Gael Party supported in 1999 and continues to support. We are pleased to present a united force in the face of Fianna Fáil and Progressive Democrats opposition to this important Private Members' Bill.

In the debate of 15 June 1999, when the Labour Party brought the Bill to the House, Deputy Rabbitte asked a number of questions. He asked if it was credible that nobody knew or suspected that all was not well at the Blood Transfusion Service Board. Did nobody in the Department of Agriculture and Food know or suspect illegality and malpractice in the beef industry? Did nobody know or suspect the consequences of Army personnel being exposed to hearing damage? Following 30 years of serious allegations, analysis and criticism of the planning system, especially in the Dublin area, is it believable that nobody in the system ever stumbled across any wrongdoing or illegality, or any malpractice as alleged against certain financial institutions?

Many questions must be asked in light of the Government's failure to implement this Bill. Is it possible that so many medical professionals in the Our Lady of Lourdes Hospital in Drogheda knew nothing of the actions of Dr. Michael Neary? Is it possible that so many civil servants in the Health Service Executive saw nothing wrong in the roll-out of PPARS? Is it possible that so many local authority staff and members knew nothing of the rank corruption in and around Dublin throughout the 1980s and 1990s?

I do not need to present any evidence to this House for the necessity of this Bill because it has been in the public domain for so long. We do not wish to discuss on a regular basis in this House dodgy deals in high places, corrupt officials with too much power and shady practices in our most trusted institutions.

It is mind boggling that the Government has failed to implement the Bill despite its promise to do so. Instead it will work on a sector by sector basis to root out corruption and wrong-doing. Do the promises of this Government mean anything?

Deputy Kenny will address the House tomorrow night. He was trusted by a whistleblower in the HSE and entrusted with the task of telling the nation of the scandal of the PPARS system, which cost the taxpayer €160 million and still does not work. Where is the protection for that individual? That person, who remains anonymous to this day, should have been rewarded for his or her vigilance and not forced to keep their identity a secret. Deputy Twomey will also speak in this debate. Nobody needs to be reminded of the dreadful impact of the actions of Dr. Neary in Drogheda. It beggars belief that the Government is acting in this way one week after the truth about Dr. Neary emerged.

As Fine Gael spokesperson on enterprise, trade and employment I support the Bill and this motion. At the time Tesco was overcharging its customers at check-outs it seemed Deputy Conor Lenihan also supported such legislation. In 1999 he stated:

We must consider consumers' interests. The last few months have been characterised by various stories and allegations against banks and supermarkets relating to — and I am not suggesting it is the case, but it would appear to be — systematic skimming of the customer. This is a dangerous phenomenon and there is a need for proper enforcement to ensure it does not happen. Whistleblower legislation may prove useful in this regard.

Can the Minister of State, Deputy Conor Lenihan, explain why this Government should not enact a comprehensive whistleblowers charter that would protect the workers who identify rip-off merchants and those who work against consumers' interests?

During that same debate Fine Gael stated this legislation should include some supports for employees so that they can obtain confidential legal advice on whether they should progress further a complaint. We want to see safeguards to ensure spurious claims are avoided. Such protection is important and can be adopted on Committee Stage. It would be better if the employee could be assured the complaint had substance by obtaining the advice of a third party. Other jurisdictions have whistleblower hotlines that people can contact to ask if a certain practice should be reported. There is no point in passing this legislation if the employee is left hanging out to dry.

The definition of employees contained in the 1984 Act would exclude many people, including students. If a student in a third level institution discovers something is radically wrong, will he or she be protected if the whistle is blown? This area is covered in the equivalent British legislation and should be examined.

Revelations of sharp practice, overcharging and daylight robbery in our banks brought shame to the industry but were vital to ensuring trust was restored and consumers got a fair deal. AIB and National Irish Bank were at the centre of this storm over the past years. National Irish Bank was in the spotlight for a litany of sins, ranging from overcharging customers to assisting them to evade taxes. AIB, Ireland's largest financial institution, issued three reports detailing how it overcharged customers by more than €34 million. The Revenue Commissioners also investigated offshore investments used by former chief executives and other senior management, prompting many observers to conclude that its culture is rotten to the core.

Currency converter machines used by bank staff to calculate transactions had been adjusted to reduce the rate of commission charged from one percentage point to 0.5 of a percentage point, in the days before IFSRA contacted the bank. The Irish Times reported the bank confirmed that staff working on the foreign exchange counters were not informed why the machines were altered. Had the error not been made public, it is likely that these customers would never have known they had been overcharged.

The Irish Bank Officials Association, IBOA, said its members were demoralised and disgusted to learn of what happened. The revelations about wrongdoing at AIB and NIB were brought to public attention by staff who reported such misdeeds. They felt unable to raise these matters within their organisations and sought to highlight them through the media or the regulator. Mr. Larry Broderick, general secretary of IBOA, told the Joint Committee on Finance and the Public Service that bank employees are working in a culture of fear and are frightened of speaking out on virtually any issue for fear it will damage their career prospects.

How does the Government respond to these employees? What does it say to the 1,000 bank workers who voluntarily leave jobs once considered safe and well paid? The attitude of the Government is that of a firefighter who will come to the scene of an emergency rather than attempting to prevent that emergency. It is short-sighted, illogical and wrong.

Professional self-regulation must be examined as this is not working in the interests of consumers. I welcomed Government legislation to set up an oversight body for the accountancy profession. The Irish Auditing and Accountancy Supervisory Authority, IAASA, is an improvement on self-regulation in the accountancy and auditing professions. The Blaney inquiry has taught us much about those professions.

We must consider if something similar can be applied to the medical and legal professions. Too many examples exist of consumers being short-changed due to over-reliance on a self-regulatory regime where people within the profession are examining the misdeeds of the profession's members. Neither the customer nor the country can have confidence in such an arrangement, particularly in light of the Neary case.

The Labour Party Bill and the Labour and Fine Gael motion presented to the House deserve support from all parties. This is an attempt to ensure ordinary decent people do their civic duty in a genuine fashion without facing penalties. The Government has stated it will take a sector by sector approach. This approach may have good intentions but sectors will be left out. Will it always take a scandal for that sector to reach the Government radar? The wrongdoers have had their chance. The Government has had sufficient time since 1999 to consider this matter and I ask it to consider ways of progressing this motion in the interests of the taxpayer and of the people working in the public and Civil Service.

Photo of Liz McManusLiz McManus (Wicklow, Labour)
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This motion is an important and timely response to a need that has been brought sharply into focus by recent events. A whistleblowers protection Bill has many applications but none more important than within our health service. Too often we have seen scandals arise because of a fundamental failure to ensure proper accountability and oversight. The hepatitis C scandal, the deaths of haemophiliacs, the nursing homes charges and most recently, the experience of patients of Michael Neary, are testimony to that failure. The publication of the report on Our Lady of Lourdes Hospital in Drogheda by Judge Harding Clark, exposes the latest in this line of scandals. This Private Members' motion is timely in light of that report because it offers us the opportunity of redemption. Since the report was published there has certainly been remorse shown. The women who suffered so much have received an apology from the senior medical staff of Our Lady of Lourdes Hospital. The obstetricians who failed in their duty to properly investigate Michael Neary's practice have expressed regret. The Tánaiste and the Taoiseach have expressed their sympathy and regret. These are all welcome words but they are only words. What the Labour Party offers in this motion is action.

Now that we know the extent of the terrible injustice that was meted out to these young women we have to go beyond simple expressions of regret and the payment of compensation. We can proceed to legislate to protect the future midwife, bank official, worker or civil servant who sees a wrong and refuses to close their eyes to it. We can act by passing such legislation and we should do so. That is the proper way to ensure accountability and it is long overdue. The Government is wriggling out of its responsibilities and this is yet again evidence of its inability to govern well even when the circumstances are so compelling.

The focus of the Judge Harding Clark report has rightly rested upon the unfortunate women patients who have suffered so much but there is another woman who deserves to be remembered. The debt owed to the midwife named as Ann is recorded by Judge Harding Clark in the following words: "If it were in the power of the Inquiry to make an award of bravery to any person, it would be to the midwife who we shall call Ann who made the first complaint to the North Eastern Health Board solicitor". The report describes the difficult, lonely route that this young midwife took in her pursuit of the truth. She was clearly isolated by her colleagues and had to persist doggedly in raising her concerns before the opportunity arose for her to speak to the solicitor. According to the report there was no forum for expressing her concerns and she was reduced to nagging her colleagues. What is striking about Ann is her courage, her refusal to lie down under pressure, her thirst for justice. What is shocking about Ann is that to this day she has never gone public about her role. To this day the women do not know the identity of their champion. "Everyone owes her a debt" says Fidelma Geraghty, a woman who underwent an unnecessary hysterectomy after her baby was stillborn:

If it weren't for her, this could still be going on today and hundreds more women could have been affected. I would love to know who she is.

None of us knows Ann's identity. There is a real danger that what is presented in the Judge Harding Clark report is regarded as of historical interest only. It should not be seen in such a light. The report points out that even in Our Lady of Lourdes Hospital there is still inadequate risk management in place. It also queries the lack of scrutiny of other peripheral hospital maternity units and the need to provide a full assessment of care. We are continually being reassured by the medical professionals that what happened at Our Lady of Lourdes Hospital could not happen today. Speaking frankly, I do not buy that argument. It is not sufficient to rely on the professionalism of doctors alone to police themselves any longer. Increasingly doctors at the highest level are working within teams rather than in isolation, which is to be welcomed. However, the power relationship between hospital consultant and junior staff, other medical professionals and patients, is still very imbalanced. To its credit the Medical Council has been pressing for many years for reform. Regrettably its concerns have fallen on deaf ears. It is now almost ten years since the Medical Council began campaigning for a new medical practitioners Bill and there is still no sign of it.

Even allowing for reform of the Medical Council, it is important that the role of the whistleblower is recognised and protected. There will always be space for abuse, no matter how good the system of competence assurance in the health service. The idea of the hospital consultant as God has been used to explain how Michael Neary was able to get away with his practice for so long. Doctors are never gods. They are human and subject to the same human frailty as the rest of us. Those who work closest to them can see when a doctor fails to live up to his or her Hippocratic oath in a way that may never be seen from afar.

In Our Lady of Lourdes Hospital in Drogheda it took an exceptional person to break ranks and an exceptional administrator in the health board to pursue the scandal into the open. To this day the person who broke the terrible cycle of pain and mutilation remains unwilling to step forward even after the publication of a report that praises her and totally vindicates her bravery. The forces unleashed by the Neary controversy over the years were powerful and destructive to the point where secrecy is the preferred option for the person whose heroism led to the discovery of a terrible wrong.

The lesson of Ann the whistleblower must not be lost. This motion is a move to recognise just how difficult it can be to speak up when others stay silent and how easily ways can be found to silence the expression of concerns in any workplace, whether in private business or in the public sphere. The need to protect individuals who stand outside of the herd and speak out should be paramount. This is the reason this motion is so important. The Government refusal to act is very disappointing.

This health service under the term of office of the Tánaiste has become more secretive than at any time in the past and is less accountable now than at any time in the past. One of the best ways to protect patients is for there to be a way of recording what happens to them, whether at health board level, through the media or in this House. This Tánaiste has been regarded in many ways as the champion of accountability but has managed to strip out all the safeguards that were in place in the health service. As has been pointed out by Deputy Hogan, we will become more dependent on the whistleblower inside the system to alert the public to the failures and the threats that may exist within the health service that is so important to all.

Photo of Micheál MartinMicheál Martin (Cork South Central, Fianna Fail)
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I may be sharing time with Deputy O'Connor if he arrives.

Photo of Pat RabbittePat Rabbitte (Dublin South West, Labour)
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I applaud the Minister's confidence.


The whistleblowers Bill for Tallaght.

Photo of Micheál MartinMicheál Martin (Cork South Central, Fianna Fail)
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I move amendment No. 1:

To delete all words after "Dáil Éireann" and substitute the following:

—notes this reaffirmation of the Government's commitment to the protection of whistleblowers; being persons who legitimately bring to the attention of the appropriate authority, sensitive information gained in the course of their employment and notes that Government has already demonstrated this commitment by providing appropriate whistleblower provisions in a series of statutes enacted by the House as well as in legislative proposals currently before this House;

—notes the very significant legal and drafting issues which have arisen in the drafting of a single all-encompassing legislative proposal on whistleblowing;

—supports the Government in its decisions to proceed on a case by case basis with appropriate whistleblowing provisions, as either enacted by the Oireachtas or currently before this House, rather than await the possible resolution of wider complex legal issues;

—notes the Government's approach will continue to provide a series of opportunities for the House to contribute to the formulation and enactment of appropriate whistleblower provisions on a sectoral basis; and

—endorses the Government's intention to continue to pursue the sectoral approach which will supersede the all-encompassing approach proposed in the Private Members Bill of 1999.

The Whistleblowers Protection Bill 1999 was introduced in the Dáil by Deputy Rabbitte on 24 March 1999. The Government, at its meeting on 15 June 1999, decided to "accept the Bill, in principle, on Second Stage, subject to indicating to Deputy Rabbitte that amendments will be proposed on Committee Stage by the Tánaiste and Minister for Enterprise, Trade and Employment following consultations with the interested parties and following on the advice of the Attorney General".

As a result, my colleague, the Chief Whip, Deputy Kitt, then Minister of State with responsibility for labour, trade and consumer affairs, announced in the Dáil on 15 June 1999 that he fully supported any meaningful measures to increase the protection of workers and, therefore, would not be opposing the referral of the Bill to committee. He also indicated that many of the provisions of the Bill would have to be examined more closely and would necessitate further consultation with the social partners and other interested bodies. The Bill passed Second Stage in the Dáil on 16 June 1999 and was referred to the Select Committee on Enterprise and Small Business.

I wish to take this opportunity to outline to the House the extensive range of considerations that required attention in seeking to refine the Bill. In July 2000, following examination of the Bill, my Department, in consultation with the Office of the Parliamentary Counsel, circulated a draft memorandum for Government to all Government Departments. As a follow on from observations received from Government Departments, 45 amendments were prepared by my Department. The proposed amendments, if adopted, would have resulted in a more comprehensive item of legislation. This would have provided protection from civil liability or penalisation during their employment for employees, including agency workers, who made — to the specified persons, appropriate officers of public bodies so designated for the purposes of the Bill — certain protected disclosures of information obtained in the course of their employment, as distinct from making certain disclosures in respect of the conduct of the business and affairs of their employers.

At its meeting on 27 July 2001, the Government approved the redrafting and amending of the Whistleblowers Protection Bill 1999 along the lines of the 45 draft amendments. This was subject to further consideration being given to implications for the Central Bank and related issues and the breadth of the grounds, in terms of future behaviour, on which the terms of the Bill could be invoked. The Government amendments raised a number of detailed and complex issues which, according to the advice of the Office of the Parliamentary Counsel, would require substantial redrafting of the Bill. These related to issues such as the inclusion of the Central Bank under the Bill. Clarifications were sought to ensure that the terms "employer" and "employee" did not include the Central Bank and its staff. The issue was that the Central Bank's confidentiality regime was derived from obligations regarding professional secrecy imposed under EU law. It was necessary to avoid any possible conflict with the Central Bank Acts and/or EU law. Legal advice was received from senior counsel and the Attorney General's office indicated inconsistencies with certain EU commitments in respect of conditions for the disclosure of information. Another issue raised was the provision of the protections of the Bill to public servants. In particular, issues on the operation of the Official Secrets Act 1963 arose.

In 2002 the Office of the Parliamentary Counsel subsequently indicated that the proposed Government amendments would require further consultations, particularly in respect of the protection of trade secret type industrial processes and especially where these overlap with intellectual property rights. The Bill should not create a grey area between the matters that are to be included in whistleblowing and the protection of such intellectual property rights. Further consultation was also indicated for clarification of the nature of the protections that would be required under the Unfair Dismissals Acts 1977 to 1993 for employees who blow the whistle, reasonably and in good faith, and in respect of the Official Secrets Act 1963. In addition, the Attorney General's office also provided further complex legal advice relating to the obligations on designated bodies and the Central Bank of Ireland to report certain suspected money laundering activities to the Revenue Commissioners.

Further progress on redrafting the Bill was overtaken by the dissolution of the Dáil in April 2002 and the general election in May 2002. The Government decided in June 2002 to restore to the Dáil Order Paper the 1999 Bill as one of a number of items of draft legislation circulated by the Chief Whip on 10 June 2002. This was achieved on foot of a motion taken in the House on 18 June 2002. The Bill was placed on the Order Paper and became part of the Government legislative programme, which, as Members are aware, is a commitment to legislate.

Progress on redrafting the Bill was raised on a number of occasions in the House, either on the Order of Business or in the form of parliamentary questions. In addition, the Taoiseach's private office wrote to Deputy Howlin on 5 February 2003. I understand that the Taoiseach's private office also contacted the Deputy on the issue on 21 November 2003.

In light of the complexities encountered, the possibility of continuing to address the issue on a sectoral basis was examined because such an approach began to look more effective and practical. Following consideration, this approach was conveyed to this House on the Order of Business on 19 May 2004 by the then Minister for Defence, Deputy Michael Smith, who stated:

It is now considered, on reflection, that the provision of statutory protection for whistleblowers on a sectoral basis might provide a better and more focussed approach to dealing with this issue as in the case of section 4 of the Protection for Persons Reporting Child Abuse Act and section 50 of the Competition Act. In such circumstances, proceeding with the 1999 Bill is not viewed as a priority. The matter may be addressed at some future time when priorities in terms of the Government's legislative programme have been implemented.

This approach — that Deputy Rabbitte's Bill was no longer a Government priority — was repeated by the Taoiseach on the Order of Business on 2 November 2004 when he stated:

In such circumstances, proceeding with the 1999 Bill, as it is five years old, is not viewed as a priority. It may be addressed at some future time when the priorities of the legislative programme will be implemented. For the information of the Deputy, the two countries which introduced whistleblowers Bills have altered the legislation because it is not workable.

This sectoral approach was also articulated on a number of occasions during 2004, either on the Order of Business or in replies to a number of parliamentary questions in the House. As highlighted in the Opposition's motion, the Whistleblowers Protection Bill 1999 is still retained on the Government legislative programme. However, in light of further exchanges on the Order of Business on 15, 16 and 30 June and 1 July 2005, and replies given to parliamentary questions on the issue on 28 September, 2 November and 6 December 2005, I believe that it is now necessary to bring clarity to this issue.

I have attempted to give the House some flavour of the exceptional legal difficulties encountered in seeking to give legislative effect to the provisions in the original Bill. I have no reason to believe that these problems can be satisfactorily resolved in the near future, despite the existence of goodwill and hard work on all sides. In recent times, I have been giving consideration to formalising a sectoral approach to the issue of whistleblowing. I will outline to the House what I mean by this and why I think it is the best approach.

A sectoral approach will enable the speedier introduction of relevant measures appropriate to different sectors to address the important issues identified in Deputy Rabbitte's original Bill. As already indicated, however, the extensive work on preparing official amendments to the Private Members' Bill raised a number of complex legal questions relating to: inclusion of the Central Bank having regard to the bank's confidentiality regime; the obligation on designated bodies and the Central Bank of Ireland to report certain suspected money laundering to the Revenue Commissioners; the Official Secrets Act 1963 and its implications for civil servants; the protection of trade secret type industrial processes; and the fact that a single, all-encompassing legislative proposal on whistleblowing would be complex and cumbersome, take considerable time to enact and would not be user-friendly to the general public.

The benefits of my suggested approach can be evidenced by legislative developments in the period since the introduction of Deputy Rabbitte's 1999 Bill. It is unfair and inaccurate to say that nothing has happened in respect of whistleblowing in recent years. A significant number of measures have been introduced.

The issues raised in the context of the original Bill are so important that they do not allow for postponement until a perfect item of comprehensive legislation can be devised. Accordingly, my colleagues and I have been availing of opportunities to include suitable whistleblowing provisions in draft legislation, where appropriate. As indicated earlier, while still seeking to solve drafting problems in the original Bill, the Government included suitable provisions in a series of legislation adopted by this House in recent years. These items of legislation were the subject of lengthy discussions during their passage through the Houses, during which the Opposition parties had the opportunity to raise concerns with regard to workers who might want to blow the whistle in good faith. They include section 4 of the Protections for Persons Reporting Child Abuse Act 1998, which provides immunity from civil liability to persons who report child abuse, reasonably and in good faith. Under the Ethics in Public Office Act 2001, the Standards in Public Office Commission is empowered to investigate complaints about alleged contraventions of the Ethics in Public Office Acts..

As far as complaints are made, inter alia, by civil servants against other civil servants, the Ethics in Public Office Acts 1995 to 2001 provide at section 5(1) that "where a person makes a complaint to the Commission in good faith, no cause of action shall lie against the person and no disciplinary action shall be taken against him or her as a result of reporting his or her concerns to the Commission". Section 5(4) provides that a person who takes disciplinary action against a complainant in this context will be guilty of an offence and liable to a substantial fine.

Section 50 of the Competition Act 2002 provides that a person shall not be liable in damages in respect of the communication, whether in writing or otherwise, by him or her to the Competition Authority. The 2002 Act also provides that an employer shall not penalise an employee for having formed an opinion of the kind referred to in section 50(1) of the Act and communicated it, whether in writing or otherwise, to the authority if the employee has acted reasonably and in good faith in forming that opinion and communicating it to the authority.

Section 27 of the Safety, Health and Welfare at Work Act 2005, only recently passed by the House, provides for protection against dismissal and penalisation of employees who, in good faith, take steps to protect themselves or others in a workplace situation.

Section 124 of the Garda Síochána Act 2005 provides for regulations for the establishment of a charter containing guidelines and mechanisms to enable members of the Garda Síochána or other persons to report, in confidence, allegations of corruption and malpractice within the force.

Following my deliberations, the Government has agreed to my proposals to formalise the sectoral approach as part of its policy in respect of addressing the issue of whistleblowing by requiring Ministers — in consultation with the Office of the Parliamentary Counsel to the Government — to include, where appropriate, whistleblowing provisions in draft legislation that is either on the Government's legislative programme for the current Oireachtas session or that is in the course of preparation. Such an approach also acknowledges situations where the provision of whistleblowing provisions may not be appropriate.

As part of this approach, I propose to move a Government amendment to include whistleblowing provisions in the Employment Permits Bill 2005 on Committee Stage later in the week. This amendment will provide important protections to employees from overseas who act to report wrongdoing on the part of employers, either to a member of the Garda Síochána or the Minister in respect of the new Act or the earlier Employment Permits Act 2003. The amendment follows the provisions of existing sectoral legislation outlined earlier.

Against this background, I ask the House to support the Government in its decision to proceed on a case by case basis with appropriate whistleblowing provisions, either as enacted by the Dáil or currently before it, rather than await the possible resolution of wider complex legal issues.

In essence, therefore, the Government is putting before the House a different methodology towards achieving the same broad objectives being put forward by the Opposition in the context of the Whistleblowers Protection Bill. I stress that we are essentially proposing what we believe to be an effective alternative, endeavouring to obtain one-size-fits-all legislation. I have outlined a number of the legislative enactments put into play by the Oireachtas in which whistleblowers' provisions exist to protect employees from penalisation or from any attempt to undermine their status as a result of volunteering information for the betterment of others and preventing wrongdoing or other unacceptable behaviour. This should be accepted in good faith. It is not fair to suggest that nothing has been done in the past five years. Significant progress has occurred in respect of the areas outlined.

As regards issues raised in this debate, the context will become available. I refer, for example, to the appalling behaviour of Dr. Neary at Our Lady of Lourdes Hospital, Drogheda. I applaud Judge Harding Clark on the excellence of her report. I was pleased to appoint her to conduct this inquiry. I assure Deputy McManus that it will not be seen in an historic light and that the recommendations will be acted upon. I know the Tánaiste is very committed to doing that and the opportunities will arise whereby the conclusions of that report may be reflected in terms of new legislation templates, including that which may be proposed as regards the Medical Council, as well as the entire issue of standards and so forth.

Whistleblowing provisions will not provide a panacea for resolving all issues and problems. Issues pertaining to culture, status and a range of other matters are also factors as regards some of the unacceptable activities that have occurred in a wide range of areas alluded to by Deputies in the course of this debate.

I also ask the House to note that the Government's approach will continue to provide a series of opportunities for Members to contribute to the formulation and enactment of appropriate whistleblower provisions on a sectoral basis.

Finally, I ask Members to endorse the Government's intention to continue to pursue the sectoral initiative which will supersede the all-encompassing approach proposed in Deputy Rabbitte's Private Members' Bill of 1999. Under the sectoral approach, I propose to instruct the Chief Whip to seek to remove the Whistleblowers Protection Bill 1999 from the Dáil Order Paper. The bottom line is that we believe the best way to approach this is to insert appropriate clauses in the various items of legislation that will come before the House in this session and next year and also to review the situation on a case by case basis. It would be unfair, then, to leave the Bill on the Order Paper.

Deputy Rabbitte suggested that the Bill has achieved certain historic status. There is no point in persisting with that unnecessarily when an alternative approach has been decided upon by Government. It is an approach that I commend to the House. However, the important public issues that gave rise to Deputy Rabbitte's original proposal have not diminished in relevance. While appropriate provisions to address these issues have been included in a number of statutes, there can be no sense of complacency. I share much of the concern articulated by Members.

It is imperative that we continue to ensure that persons giving sensitive information in the public interest are provided with appropriate safeguards. Furthermore, as the House considers each Bill coming before it, Members will have an opportunity to decide on the whistleblowing safeguards most appropriate to different sectors and to the particular needs of persons working in those sectors. The sectoral approach also means that future measures in this area will be informed by the experience of earlier measures already on the Statute Book. This is so that we can evaluate the measures already put in place to gauge their effectiveness and the degree to which they may be refined and improved on.

We are not convinced that there is a one-size-fits-all solution. The financial world, for example, is much different from the health world, health and safety and employment law and labour rights. We are dealing with a wide spectrum of issues. I accept that everything that has been put forward was argued in good faith but genuine legal difficulties have arisen. Complex questions have been raised. In our bid to find the perfect all-round solution we could lose more valuable time. However, in terms of the legislation coming before the House in a number of important areas, whistleblowing measures may be inserted. The latter is what we are currently proposing to do.

All Deputies have a role to play in this regard and the Government will certainly be prepared to consider contributions to this end from all sides of the House. I am convinced that the sectoral approach offers the best prospect of effectively addressing these important issues in a timely and effective manner. In terms of future legislation coming before the House, the Government is open to whatever amendments or proposals the Opposition puts forward in that regard.

8:00 pm

Photo of Charlie O'ConnorCharlie O'Connor (Dublin South West, Fianna Fail)
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I thank the Minister for allowing me to say a few words on this matter. As I walked through the self-service restaurant in the House, I noticed that there were more people watching the Minister speak than there were watching the football match between Chelsea and Barcelona, which is a compliment to the Minister and the manner in which he dealt with this issue.

I compliment the Minister on the kindness he showed me last week when I voiced my concern about possible job losses at the Jacobs Fruitfield factory in Tallaght in my constituency of Dublin South-West. In spite of being abroad on a very important trade mission, the Minister found the time to calm me and give me some very helpful advice. I am pleased that the efforts of the trade unions and staff at the factory have been successful and that the factory can now look forward to a very positive future. I compliment the Minister on the interest he showed in this issue. Every Deputy can discuss issues and the need for job creation in his or her constituency but my constituency needs jobs more than most. It is the third largest population centre in the country with a very young population and it is important that I continue to inform the Minister of the needs of Tallaght in this regard. I thank the Chairman for bearing with me during my brief digression and my colleagues for not heckling me.

I listened to the earlier part of the debate. I have always complimented the Opposition parties for bringing forward motions during Private Members' business. If I may say so without upsetting anyone, the remarks of many colleagues are sometimes more sincere in certain debates than in others. There is a certain measure of agreement with regard to this Bill, which has been dealt with very well by the Minister's speech, and it is important that we acknowledge this. I acknowledge the work of my colleagues on the Opposition benches who tabled this motion.

I am aware that we will all repeat ourselves because there are very few new arguments one can make in respect of this issue. However, the Minister reminded us that the purpose of the Bill is to provide protection from civil liability to employees who make certain disclosures reasonably and in good faith in respect of the conduct of a business and the affairs of their employers about which they become aware during their employment. It is important to note that the Bill prohibits the penalisation of employees by their employers in these circumstances. It specifies the person to whom disclosure may be made and the categories of matters in respect of which the making of such disclosures is permissible. It is important for us to understand the importance of this section.

We should also remind ourselves that the Whistleblowers Protection Bill 1999 is still retained by the Fianna Fáil-led Government in the legislative programme. In light of a number of exchanges which, as the Minister noted, have taken place over a long period, it is useful that the Minister has clarified the issue and made the point very clearly that, where appropriate, whistleblowing provisions in draft legislation will be considered in the programme and in the course of preparation by the Government, in consultation with the Office of the Parliamentary Counsel.

It is also important that we listen carefully to and understand the Minister's comments this evening, which I believe he made in good faith. It is useful to put on record that the Minister's deliberations have created a situation whereby the Government has agreed to his proposals to formalise the sectoral approach as part of its policy on addressing whistleblowing by requiring Ministers to take particular account of it as they prepare their own programmes. As part of this approach, I understand that the Minister also proposes to move a Government amendment on Committee Stage of the Employment Permits Bill 2005 this week to include whistleblowing provisions. The amendment offers important protections to employees from overseas who act to report wrongdoing by employers to either a member of the Garda Síochána or the Minister in respect of the new Act or the earlier Employment Permits Act 2001. The amendment follows the provisions of previous sectoral legislation, as was outlined at length by the Minister. The Government's amendment will be formally moved on Committee Stage in the House.

Bearing in mind the point I made about the approach of the Opposition, it would be good if all the Opposition parties supported the Government in its decision to proceed on a case-by-case basis with appropriate whistleblowing provisions as either enacted by or currently before the House rather than waiting for the possible resolution of wider complex legal issues. I do not know what will happen tomorrow night but it would be interesting if a situation which is infrequent in this House emerged, a measure of agreement was reached and a routine or ritual vote did not take place.

I attended a breakfast held last week by South Dublin Chamber of Commerce, which was also attended by Deputy Ardagh. The guest speaker was the former Fine Gael leader, Alan Dukes, who reminded us of the famous speech he made ten years ago. The speech was delivered in Templeogue but became known as the Tallaght speech. In the speech, he argued that it was not necessary for Governments always to be opposed by Opposition parties. The leader of the Conservative Party in the UK, David Cameron, also takes this approach in respect of certain issues. I am aware that slight panic sometimes appears on the Opposition benches as we count down the last 450 days to the next general election but we need to remain focused and perhaps remember that a considerable amount of legislation is coming forward which has considerable merit. I am not saying that any of this legislation does not have merit. There should be more occasions during which the parties can agree on certain matters, having dotted the i's and crossed the t's and made our political points, as we are entitled to do. We should then go forward, accept what the Government is arguing in respect of certain aspects of this legislation and not vote simply for the sake of it. I do not know whether such agreement will be evident tomorrow night but I live in hope.

I compliment the Minister on his speech. It is important that we have an opportunity to deal with this issue, which has been in circulation for a long time. I recall some advertisements produced by insurance companies and other interests which encouraged the public to be sufficiently brave to blow the whistle on insurance fraud. I acknowledge the point made by the Opposition spokespeople that the Bill has been in circulation for a long time but it is important that we understand the need for it. I hope the Minister's speech, which covered all aspects of the Bill, has calmed people. I look forward to voting for the Government amendment in any vote which may occur tomorrow night.

Photo of Liam TwomeyLiam Twomey (Wexford, Fine Gael)
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I wish to share time with Deputies O'Dowd and Timmins. I am disappointed that the Minister has left the House, although I have nothing against the Minister of State at the Department of Enterprise, Trade and Employment, Deputy Michael Ahern. It would be very apt for the Minister to be present in the House for this legislation because he was one of the architects of the current rudderless state of the Irish health service. It would do him good to read the provisions of the Whistleblowers Protection Bill 2005.

Almost since the day it assumed power, this Government has attempted to reduce the amount of information people can obtain about it and the services provided by it. One of the first things it did on re-entering office in 2002 was reduce the strength of the freedom of information legislation so that people could not access information. Pontificating at this stage about transparency and openness in government is, to say the least, somewhat rich. Government codes in respect of disclosure are written in a way that puts people off going down that road. It is almost impossible to follow the codes of governance relating to the HSE. It should be made easy for people to complain about what they perceive as problems within the health service, a matter on which I wish to focus.

The Minister said that he will take a sectoral attitude to dealing with the whistleblowers legislation, which is fine. Does this mean that we can look forward to whistleblowers provisions in a few months' time, when we debate the health information and quality assurance legislation? The heads of that legislation were approved by the Cabinet today and they will now go on a two-month trip to stakeholders who wish to make their opinions known on the legislation. Since the legislation deals with openness and the quality and accountability of systems within the health service, it can only mean that there are whistleblowers provisions for the health services. If not, it means the Minister was waffling and doing exactly what he did during his four-year term in the Department of Health and Children where he was always just one report away from making a decision. Members on this side of the House will be watching closely to see if whistleblowers provisions relating to the health service will be introduced in a couple of months' time when the HIQA legislation comes before the House.

Am I inspired with confidence in the Tánaiste and Minister for Health and Children, Deputy Harney, to deliver on this, regardless of what I may feel about the previous Minister, Deputy Martin? Last year, I asked the Tánaiste a priority question about whistleblowers legislation. Her answer gave a fair indication of what she thinks about the need for whistleblowers legislation for the health service. She said that she had been in the House for many years but she had never heard of medical staff — doctors or other professionals — being shy about voicing their concerns at any forum. Even though this was before the Neary report was published, we were all aware of what had happened in Drogheda. For the Tánaiste to utter that sort of nonsense means that no one was briefing her on a day-to-day basis as to what might crop up in the Neary report. She appeared to indicate that doctors would always voice their concerns. As a doctor, I am absolutely disgusted with what is contained in the Neary report, namely, that Dr. Neary and the three consultants conspired in some respects to cover up what happened to the women involved. Dr. Neary was allowed to go back to work on the basis of the consultants' findings.

Since the report was published, there has been very little comment from the Tánaiste on who authorised the three consultants to enter the hospital. What happened to the report and when were the findings made known? Who acted on the reports and what was the trail of events following what the three consultants wrote? There are strong indications that the Government is still sound asleep and extremely complacent in this regard. It has no credibility in dealing with the problems in the health service. It acknowledged the report and said it was great, even though there are glaring questions to be answered in regard to the report. We have heard nothing from the Tánaiste since its publication.

I wish to make another point regarding the Tánaiste's reply to me last year. She said that we must distinguish between those who may from time to time express concerns on behalf of patients and those who may have their own perspective on matters. In other words, she is saying that some people, with their own agenda, may set out to destroy one's reputation by using whistleblowers legislation. It is crystal clear from whistleblowers legislation throughout the world that one can include protection so that people's reputations cannot be destroyed by someone using such legislation in a malicious manner. The Tánaiste's answer is similar to that which one would expect from someone at Our Lady of Lourdes Hospital who was trying to defend the indefensible. She does not acknowledge patients' rights or their concerns. She is acting as if she is not representing the people. This same attitude is coming from the opposite side of the House tonight. Members are drooling through contributions they have been given by someone in some press office. There is no rigorous discussion on the issue. Members opposite are not standing up for people who cannot stand up for themselves. They should be far more proactive on the issue.

The Tánaiste also replied that it is only someone at my peer level — I assume she is referring to me as a doctor — who could intervene in the interest of patients. It is not reasonable to expect people who are not medical personnel to be able to take action when they feel something is inappropriate in a hospital. That is the greatest rubbish I have heard in a long time. My role as a legislator is of far greater importance in protecting patients than is my role as a doctor. This goes for every doctor, nurse and health care professional in the health service.

Huge mistakes were made but I know what it was like to work in these hospitals. Some of these hospitals have not changed much in the past seven or eight years. Nothing in the Neary report will change the way many of these people operate. These practices will continue in the future unless strong whistleblowers legislation that will allow doctors and nurses to come forward and express their concerns is put in place. It would be better if they expressed their concerns to me as a legislator rather than as a doctor. As a legislator, I can at least come before the House and voice these concerns without worrying about a solicitor or a senior counsel's letter arriving on my desk two days later and being threatened with legal action. We all know what would have happened to the nurse at Our Lady of Lourdes Hospital if Dr. Neary got to her before that brave administrator in the north east. He would have sent her a solicitor's letter. He would have threatened and bullied her and the idea of being obliged to face litigation and paying €40,000 or €50,000 to a senior counsel would have buried her. It would have shut her up, as is currently happening to people throughout the country.

This is the reason for the legislation. It is what we are discussing. This matter involves representing patients. One can call them constituents if one wishes but these are the people we are protecting. The Minister, Deputy Martin, should wake up to what this matter involves. The drool in his speech is the same nonsense the Tánaiste, Deputy Harney, gave me three months ago.

Members on the opposite side of the House should be realistic. Patients should be given the protection they need. We should not fall back on this nonsense about peer levels because the people who failed the women in the north east were at that level. It was the bravery of a few individuals that saved many other women's lives. This is something that must be taken on board. When the HIQA legislation is published, there must be a section dedicated to whistleblowers which we can understand and on which we can deliver for patients. Deputy McManus and I will be more than happy to debate the issue on Second Stage and Committee Stage. Like everyone else in the country, we will be extremely disappointed if this aspect is missing from the legislation in a couple of months' time and if more lame excuses to the effect that it will be introduced sometime in the future — when the current Administration will no longer be in government — are offered. That will not be good enough. The legislation must be introduced now.

Photo of Fergus O'DowdFergus O'Dowd (Louth, Fine Gael)
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The Labour-Fine Gael motion is very important. It has come at an important time, following such a damning report on what happened in a hospital in my town. In the report, Judge Harding Clark asks whether this type of thing is happening in other maternity units throughout the country. On page 33, there is a long list of people who were qualified and working in the hospital who said nothing about what was happening. It is amazing that such a range of significant caesarean hysterectomies, which a surgeon would perform ten times in his or her lifetime, were carried out ten times a year on average. This beggars belief. It amazes me that no one shouted stop.

A fundamental aspect of the whistleblowers legislation is that there should be advocates for patients in hospitals. If a patient is critically or chronically ill or dying, there should be people working in the hospital who would be advocates for him or her.

They should have professional training and knowledge and ensure that patients needs are met. While we need the whistleblower when everything goes wrong, there should be a system where the needs of patients, who often cannot speak for themselves because they may have serious disabilities, psychiatric illnesses, etc., are met. We should protect such patients by providing a system of advocacy.

Local government is also mentioned in the motion. It is amazing that the Minister for the Environment, Heritage and Local Government has refused to act on the strong views of the chairman of the Standards in Public Office Commission who basically asked that whistleblowers legislation be introduced to protect employees and elected members of local authorities against reprisal where a bona fide report or complaint is made by an employee or councillor who believes that he or she is being required to act in a manner that is illegal, improper or unethical and is in breach of constitutional convention or a professional code and that may involve possible maladministration or is otherwise inconsistent with the relevant code. That is what the Standards in Public Office Commission, since the publication of the 2004 report, has asked the Minister for the Environment, Heritage and Local Government to introduce. Basically, it is seeking that we protect, by way of whistleblowers legislation, those who are entitled to the protection and support of the State.

I do not understand why legislation has not been introduced. The United Kingdom has a system we could follow. One of the problems with the tribunal is not the amnesia so many politicians experience in regard to cheques they received or did not receive or what happened to them, it is the question of giving commitments to people seeking planning favours before the statutory meeting has taken place. In the United Kingdom, there is a code of behaviour for elected members and officials. Under no circumstances are they allowed to give any commitment or to organise a meeting before the local authority makes its statutory decision. The absence of such a code of behaviour in this country has resulted in the current situation.

The people are fed up. The tribunals have been sitting for approximately nine years. The Government has made no attempt to introduce new legislation to address the issues in regard to planning corruption, particularly in respect of protecting people who are vulnerable and who, if they told what they know, would face the same type of attack the nurse at Our Lady of Lourdes Hospital faced. As Judge Harding Clark said in her report, the woman in question was isolated and told she would never work again in this country. That is not good enough.

We need a root and branch reform of our legislation and we must protect the public interest and the public good. At all times, we need to act in the best interests of the public. The public good should always be protected. The same type of legislation is required in the area of local government as that needed to protect those working in hospitals. This Government has not acted and has been unable to face reality. Deputy Rabbitte initially introduced his Bill in 1999 but it was ignored by the Government. There is an unstoppable momentum for change. It is important that we have had this debate and the Government must act and be seen to do so.

Photo of Billy TimminsBilly Timmins (Wicklow, Fine Gael)
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I am delighted to support the motion. Sometimes I think that since Eve offered Adam the apple, society has been corrupt and no matter how hard we strive to change, we never quite get there. I read the book, American Pharaoh, about Mayor Daley and it was difficult to establish whether he was corrupt or whether he tried to work with the tools at his disposal. As society moves on and we try to emerge from the post-colonial era, perhaps we will realise that we must get our house in order.

We are familiar with the terms "war babies" and "children of the 1960s" but I dub myself a "political tribunalite" because virtually the day after the Acting Chairman, Deputy Ardagh, Deputy Carey and I became Members of the House, the tribunals were established. I am sure they will be running long after we have left. We, as politicians, have that sword of Damocles, to quote Mr. Redmond, hanging over us because it has meant that we are easy prey when we go out among members of the public and hear the refrain that we are all the same and that there is no difference between us.

When I started in politics, I did not believe corruption was as endemic as suggested. When I heard the initial rumours, I regarded them as such but obviously they were well-founded. I am somewhat weary of coming into the House and listening to Ministers give grandiose speeches. After every difficulty or disaster, we are told it will not happen again because certain plans are in train. Despite the refrain that something must never happen again, the likes of the Dr. Neary case, the planning issues in Dublin and, I am sure, throughout the country continue to happen. Each time a difficulty arises, we come into the House and bang our chests and say that it must never happen again because it is terrible. However, difficulties will arise again because, as a society, we do not have the will to address corruption. When somebody approaches us with a difficulty, we run a mile. We do not want to address it because we have this old difficulty with the informer. When one tells on someone, one feels one is doing something wrong. However, that is not the case. We must send out that message. I recall the term "tell-tale" from school. The tell-tale was frowned upon but if one brings to the notice of the authorities something that is wrong, one is benefitting society and one's actions should be extolled and not berated. We have a sneaking regard for corruption and for people who do wrong.

Following the establishment of the tribunals, we set about introducing certain measures, one of which was to change the way development plans were drawn up. We have now reached a stage where a politician is almost afraid to use his or her initiative or to do anything. Development plans are now drawn up behind closed doors by people who are not politically accountable. There was some diversity in the past when officials and politicians dealt with it. Officials are not immune to corruption and I am sure if one examined society as a whole, every sector of it is as corrupt or as clean as the next. No one has a monopoly on wisdom and that applies to the media, politics, etc.

Corruption is alive and well and will continue to be until we tackle it. I commend Deputy Rabbitte's Bill and this motion but we must provide protection for citizens. Until such time as legislation is enacted to provide immunity from prosecution for people who come forward with information that will result in the prosecution of a politician, a civil servant or someone in authority, we will continue to have corruption. Many people with information will speak out of the sides of their mouths and will make veiled references but they will never come forward with the hard evidence if they are party to the corrupt deed. They must be protected and we must make provision in that regard.

Deputy O'Connor said more people in the self-service restaurant were watching the Minister make his speech than the match between Chelsea and Barcelona. That tells me more about Chelsea than the Minister. Illegal dumping was first uncovered in County Wicklow four or five years ago but there have been few prosecutions. Cement Roadstone, a large company, was not prosecuted. We took case law from the British and I did not see any proposals to amend the law in regard to corporate liability. One man's trip abroad at the expense of a corporate body is another's perk of the job. It is, however, corruption.

We must address this matter and enhance the powers of the Criminal Assets Bureau. We must be proactive. We can continue to apply the sticking plaster in respect of the difficulties that arise but until we decide that we are serious about this matter, our actions will be completely irrelevant.

Debate adjourned.